Re Barnes; ex parte Barnes v Makhoul - [1994] FCA 699

RE: ROBIN BARNES, ALSO KNOWN AS ROBIN LESLIE MAKHOUL
EX PARTE: ROBIN BARNES v. JACQUES EZZAT MAKHOUL
No. BN793 of 1994
FED No. 699/94
Number of pages - 7
Bankruptcy
(1994) 53 FCR 169

COURT

IN THE FEDERAL COURT OF AUSTRALIA
BANKRUPTCY DISTRICT OF THE STATE OF QUEENSLAND
GENERAL DIVISION
COOPER J

CATCHWORDS

Bankruptcy - preliminary objections to form of bankruptcy notice - foreign judgment creditor - obligation of judgment creditor to nominate address in Australia at which payment can be made - no requirement that bankruptcy notice nominate agent of judgment creditor to receive payment - bankruptcy notice must require payment in accordance with the terms of the judgment.

Bankruptcy Act 1966 Sections 41 and 42

James v. Federal Commissioner of Taxation (1955) 93 CLR 631
Re Buchanan; Ex parte Mervac Finance Limited (1991) 31 FCR 135
Re Martin; Ex parte Government Employees Finance and Industrial Loan Corporation (1969) 13 FLR 353
Re Haritos; Ex parte Hill (1968) 15 FLR 378
In re Stogdon Ex parte Leigh (1895) 2 QB 534
In re Beauchamp Ex parte Beauchamp (1904) 1 KB 572
In re Persse (1911) 55 Sol Jo. 314
In re a Debtor (1912) 1 KB 53

HEARING

BRISBANE, 29 August 1994
#DATE 30:9:1994

Counsel for Applicant: W. Stephens

Solicitors for Applicant: Stephen Jones and Leach

Counsel for the Respondent: D. Lewis

Solicitors for the Respondent: John K. Harris

ORDER

1. The preliminary objections to the form of the bankruptcy notice are dismissed.

2. The application is adjourned to the bankruptcy list of 1 November, 1994 for hearing of the substantive application.

3. The judgment debtor is ordered to pay the judgment creditor's costs of and incidental to the hearing of the preliminary objection to be taxed, if not agreed.

Note: Settlement and entry of orders is dealt with in Rule 124 of the Bankruptcy Rules.

JUDGE1

COOPER J On 6 July, 1994 the judgment debtor was served with a bankruptcy notice which relevantly stated:-

"WHEREAS JACQUES EZZAT MAKHOUL of 2/33 Riviera Road, Miami in the State of Queensland (hereinafter referred to as 'the judgment creditor') has claimed that the sum of $41,000.00 (Forty-one thousand dollars) is due by you to the judgment creditor under a final judgment obtained by the judgment creditor against you in the District Court of Queensland (held at Brisbane) on the 27th day of October 1992, being a judgment the execution of which has not been stayed.

THEREFORE TAKE NOTICE that within 28 days after service of this Notice on you, excluding the day on which this Notice is served on you, you are required:

(a) to pay the sum of $41,000.00 so claimed by the judgment creditor to the judgment creditor

(b) to secure the payment of the sum referred to in the last preceding paragraph to the satisfaction of the Federal Court of Australia or other court exercising Federal jurisdiction in bankruptcy, pursuant to the provisions of Section 27 of the Bankruptcy Act 1966, or the judgment creditor, or compound the sum…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1994] FCA 699
Decision Date: 30 SEPTEMBER 1994

CaseChat Overview and Summary

The case of Re Barnes; ex parte Barnes v Makhoul involved a dispute over the form of a bankruptcy notice issued against the judgment debtor, Barnes. The judgment creditor, Makhoul, sought to have Barnes declared bankrupt. Barnes raised preliminary objections to the form of the bankruptcy notice, arguing it was defective. The matter was heard in the Federal Court of Australia.

The court was required to determine whether the bankruptcy notice complied with the legal requirements set out in the Bankruptcy Act. Specifically, the court had to decide whether the notice needed to nominate an agent in Australia to receive payment and if it had to strictly follow the terms of the judgment. The court also had to consider whether the notice was adequately served and if the judgment creditor was required to provide an Australian address for payment.

The court found that there was no requirement for the bankruptcy notice to nominate an agent of the judgment creditor to receive payment, as long as the notice required payment in accordance with the terms of the judgment. The court further held that the notice was properly served and that the judgment creditor was not required to provide an Australian address for payment. Consequently, the preliminary objections to the form of the bankruptcy notice were dismissed.

The court ordered that the application be adjourned to the bankruptcy list of 1 November 1994 for the hearing of the substantive application. Additionally, Barnes was ordered to pay Makhoul's costs of and incidental to the hearing of the preliminary objection, to be taxed if not agreed. The orders were to be dealt with in accordance with Rule 124 of the Bankruptcy Rules.

Orders

Orders of the court

1. The preliminary objections to the form of the bankruptcy notice are dismissed.

2. The application is adjourned to the bankruptcy list of 1 November, 1994 for hearing of the substantive application.

3. The judgment debtor is ordered to pay the judgment creditor's costs of and incidental to the hearing of the preliminary objection to be taxed, if not agreed.

Note: Settlement and entry of orders is dealt with in Rule 124 of the Bankruptcy Rules.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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